Ex Parte Hernan

• Decision Date: 11 November 1903
• Citation: 77 S.W. 225
• Parties: Ex parte HERNAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

77 S.W. 225

Ex parte HERNAN.^*

Court of Criminal Appeals of Texas.

November 11, 1903.

Original application for a writ of habeas corpus on the relation of Mike Hernan. Denied.

Newton & Ward, W. A. Hanger, Cecil Smith, and Wm. P. Ellison, for relator. O'Brien, John & O'Brien and Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Valid information was filed against relator in the county court of Bexar county, charging him with violating what is ordinarily known as the "Anti-Poolroom Law," adopted by the Twenty-Eighth Legislature. See Gen. Laws 28th Leg. p. 68, c. 50. The relator sued out the writ of habeas corpus, and, being refused by the county judge, it was presented to the presiding judge of this court, and the writ was granted; being made returnable before the court at its present sitting. Under the agreed statement of facts filed herein, it is admitted that relator violated all of the various provisions of the act in question. The only insistence of relator is that the act is unconstitutional for the reasons which we will proceed to notice.

The act of the Legislature, in full, is as follows:

"An act to prohibit the buying and selling of pools or receiving or making bets on horse racing; to prohibit leasing of premises for pool rooms, and to provide a penalty for its violation.

"Section 1. Be it enacted by the Legislature of the state of Texas: If any person shall engage or assist in pool selling, book making, taking or accepting any bet on any horse race, he shall be punished by a fine of not less than two hundred nor more than five hundred dollars, and imprisonment in the county jail for not less than thirty nor more than ninety days.

"Sec. 2. If any person shall buy, pool or otherwise wager anything of value on any horse race at any time or place, he shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars.

"Sec. 3. If any owner or lessee of any property in this state shall permit the same to be used as a place for the sale of pools, book making or wagering on any horse race to be had in this or any other state he shall be punished by a fine of not less than two hundred nor more than five hundred dollars, and imprisonment in the county jail for not less than thirty days nor more than ninety days, and each and every day that the provisions of this article are violated shall constitute a separate offense. It being the intention in the foregoing article to prohibit pool rooms or other places where persons may congregate for buying and selling pools or otherwise wagering anything of value on horse racing."

Relator, in his first proposition, insists, that the caption of the bill, in referring specifically to a method of gaming or betting upon horse races, does not mention that species of betting on horse races known as "book making," while sections 1 and 2 of the act itself seek to punish the selling and buying, or the tendering or accepting, of that particular kind of betting upon horse races; that therefore the act is broader than the caption, and for that reason is unconstitutional. Many of the questions urged by relator as to the constitutionality of this act were treated by this court in construing a similar statute in Fahey v. State, 27 Tex. App. 146, 11 S. W. 108, 11 Am. St. Rep. 182. Article 3, § 35, of the Constitution, reads: "No bill * * * shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." In the former Constitution, the word "object" was used instead of the word "subject," as contained in the article just quoted. "Judge Bonner, in Stone v. Brown, 54 Tex. 341, observes that it may be presumed that the convention had some reason for substituting a different word from that which had been so long in use in this connection, and that, in the light of judicial expressions, the word `subject' may have been thus substituted as less restrictive than `object.' In People v. Lawrence, 36 Barb. 192, the Supreme Court of New York say: `It must not be overlooked that the Constitution demands that the title of an act shall express the subject, not the object, of the act. It is the matter to which the statute relates, and with which it deals, and not what it proposes to do, which is to be found in the title. It is no constitutional objection to a statute that its title is vague or unmeaning as to its purpose, if it be sufficiently distinct as to the matter to which it refers.'" Fahey v. State, supra. Now, referring to relator's objection that the fact that the preamble does not, eo nomine, mention that peculiar character of betting on horse racing, and therefore renders that clause of the article unconstitutional, we say this contention is without merit. Book making is a mere species of betting on horse racing, and the preamble above quoted sufficiently apprises all mankind of the fact that all species and character of betting on horse racing could or might be embodied in the act itself, since the subject is the same. As...